460 F.

3d 1318

Donato DALRYMPLE, Hector S. Abelairas, et al., PlaintiffsAppellants,

v.
UNITED STATES of America, Defendant-Appellee.
No. 05-14375.

United States Court of Appeals, Eleventh Circuit.

August 16, 2006.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED Paul J. Orfanedes, Dale L. Wilcox, Meredith L. Di Liberto,
Judicial Watch, Inc., Washington, DC, for Plaintiffs-Appellants.
Michael S. Raab, Barbara L. Herwig, Mark R. Freeman, U.S. Dept. of
Justice, Civ. Div., Appellate Staff, Washington, DC, for DefendantAppellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before DUBINA and KRAVITCH, Circuit Judges, and MILLS, * District
Judge.
DUBINA, Circuit Judge:

This case arises from the execution of search and administrative warrants by
Immigration and Naturalization Service ("INS") agents authorizing the removal
of Elian Gonzalez ("Elian") from his great-uncle's home in Miami on April 22,
2000. Appellants, individuals that were present during the execution of the
warrants, filed a complaint pursuant to the Federal Tort Claims Act ("FTCA"),
28 U.S.C. 2671, et seq., against the United States ("the government"), seeking
damages for injuries caused by the INS agents' use of force during the search.
Appellants Mirtha Maria Falcon and her two minor children, Antonio Ortega
and Yuliet Colon, and appellants Alexei Torres, Angela Taina Toro, and Carlos
R. Zayas (referred to collectively as the "dismissed plaintiffs") challenge the
district court's order dismissing their claims for lack of subject matter

jurisdiction.1 The remaining appellants challenge the district court's finding

that, as a matter of law, the agents' actions were objectively reasonable under
the circumstances. For the reasons discussed below, we affirm the district
court's final judgment.
I. BACKGROUND
2

On November 25, 1999, officials found Elian, a six-year-old Cuban boy,

floating on an inner-tube off the coast of Fort Lauderdale, Florida. The INS
paroled Elian into the United States and released him into the custody of his
great-uncle, Lazaro Gonzalez ("Gonzalez"). Elian and Gonzalez, on Elian's
behalf, filed petitions with the INS seeking political asylum. Shortly thereafter,
Elian's father, a Cuban citizen, requested that Elian be returned to Cuba. The
INS determined that the petitions for asylum were legally void and refused to
consider their merit.2 The INS then revoked Gonzalez's custody of Elian. After
Gonzalez's refused to surrender Elian, the INS issued an administrative warrant
for Elian and obtained a search warrant to enter Gonzalez's home. The INS
agents executed the search and administrative warrants at approximately 5:15
a.m. on Saturday, April 22, 2000.

Appellants are individuals who were either on Gonzalez's property, neighbors

of Gonzalez, demonstrators that were either behind a barricade or advancing
towards Gonzalez's property, or other bystanders near Gonzalez's property at
the time the agents executed the warrants. They brought this action against the
government based on the government's use of gas during the execution of the
warrants. Appellants allege that during the execution of the warrants a federal
agent, using an Israeli gas gun, indiscriminately sprayed gas and "shouted
obscenities, pointed guns and/or threatened to shoot, beat, kicked and punched
neighborhood residents, passers-by and persons who had assembled peacefully
outside the [Gonzalez] home." (R. Vol. 2, Folder 1, Doc. 71 at 25.) According
to the appellants, an agent sprayed some of them "directly in the face, at point
blank range," with the gas gun. (Id. at 78.) Based on these allegations, the
appellants filed suit against the government under the FTCA for assault and
battery, false imprisonment, intentional and negligent infliction of emotional
distress, and negligence.

Prior to filing suit in federal court, each appellant filed an administrative claim,
or a Standard Form 95 ("SF-95"),3 with the United States Department of Justice
("Department"). The claims were filed on April 22, 2002, exactly two years
from the day the appellants' claims accrued. The appellants attached to each
SF-95 a copy of the amended complaint filed in an earlier case, Dalrymple v.
Reno, 164 F.Supp.2d 1364 (S.D.Fla.2001), in which fifty-two plaintiffs

demanded $100 million in damages for constitutional violations arising from

the execution of the warrants to obtain custody of Elian.4 On the SF-95 there is
a space to insert a sum certain sought by the claimant. All of the SF-95s
submitted by the appellants contained a sum certain of $250,000 except for the
SF-95s submitted by the dismissed plaintiffs, who failed to insert any sought
amount on their SF-95s.
5

After the government failed to respond to all of the appellants' administrative

claims within the prescribed six-month time period, the appellants properly
filed their claims under the FTCA in federal court. The government filed a
motion to dismiss the claims of the appellants who failed to provide a sum
certain in their administrative claims, arguing that the district court lacked
jurisdiction because they failed to meet the statutory prerequisite for filing suit.
The district court adopted the magistrate's report and recommendation and
dismissed those appellants' claims for lack of jurisdiction, finding that they
failed to meet the statutory prerequisite of providing a sum certain.

The district court granted summary judgment in favor of the government as to

the majority of the remaining appellants (referred to collectively as "the
summary judgment plaintiffs") after discovery and based upon the magistrate
judge's report and recommendation, finding that the government's use of either
tear gas or pepper spray was a reasonable use of force and was privileged under
Florida state law. Relying on "[t]he undisputed evidence in the record" which
"establishe[d] that many protestors sought to interfere with the INS officers'
ability to execute the warrants and remove Elian Gonzalez from the Gonzalez
home," by throwing objects such as a stool, rocks, and bottles at the agents, the
district court concluded that the agents' use of force was objectively reasonable
and did not give rise to the summary judgment plaintiffs' alleged tortious causes
of action under the FTCA.

The district court denied the government's motion for summary judgment as to
the assault and battery and intentional infliction of emotional distress claims of
the remaining appellants who were allegedly not on the Gonzalez's property,
were not advancing towards the agents or the Gonzalez's property, and who
were gassed at a close range either behind the barricade or on their own
property (collectively referred to as the "trial plaintiffs").5 The district court
concluded that there was a question of fact as to whether the use of gas as to the
trial plaintiffs was objectively reasonable. After a six-day bench trial, the
district court entered judgment in favor of the government as to the trial
plaintiffs' claims, finding that they failed to establish by a preponderance of
credible evidence that the use of force was unreasonable under the
circumstances. The district court found that the deployment of the gas gun was

in response to the demonstrators' threats and that the agent was 10 to 15 feet
away from the demonstrators when he deployed the gun. The district court's
findings of fact were supported by videotape evidence which corroborated the
agents' testimony regarding the circumstances surrounding the execution of the
warrants.
8

Because the district court found that the trial plaintiffs failed to prove that the
circumstances under which they were exposed to gas was different from the
circumstances surrounding the use of gas against the summary judgment
plaintiffs, the district court relied on its earlier holding that, as a matter of law,
the use of either tear gas or pepper spray was objectively reasonable under the
circumstances. Thus, the agents' use of gas did not support the trial plaintiffs'
assault and battery and intentional infliction of emotional distress claims under
the FTCA. Accordingly, the district court entered final judgment in favor of the
government. Appellants then perfected this appeal.

II. ISSUES
9

Appellants present two issues for appellate review: (1) whether the district
court erred in dismissing the dismissed plaintiffs' claims for lack of subject
matter jurisdiction on the basis that they failed to satisfy the statutory
prerequisite of providing a sum certain in their administrative claims before
filing suit against the government under the FTCA; and (2) whether, as to the
remaining appellants, the district court erred in finding that, as a matter of law,
the agents' use of tear gas during the execution of the warrants was objectively
reasonable under the circumstances because it violated the INS's policies and
procedures.

III. STANDARDS OF REVIEW

10

We review de novo the district court's order granting a motion to dismiss for
lack of subject matter jurisdiction. Broward Gardens Tenants Ass'n v. United
States EPA, 311 F.3d 1066, 1072 (11th Cir.2002). We review a district court's
grant of summary judgment de novo. McCormick v. City of Ft. Lauderdale, 333
F.3d 1234, 1242-43 (11th Cir.2003). "We review a district court's legal
conclusion de novo and its fact findings for clear error." Cohen v. United States,
151 F.3d 1338, 1340 (11th Cir.1998).

IV. DISCUSSION
A. Lack of Jurisdiction

11

The FTCA provides a limited waiver of the United States' sovereign immunity
for tort claims. Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir.1994). "It
allows the government to be sued by certain parties under certain circumstances
. . . ." Id. However, "[a] federal court may not exercise jurisdiction over a suit
under the FTCA unless the claimant first files an administrative claim with the
appropriate agency." Id. (citing 28 U.S.C. 2675(a)). The administrative claim
must be filed within two years from the time the claim accrues and must be
"accompanied by a claim for money damages in a sum certain." 28 C.F.R.
14.2(a); 28 U.S.C. 2675, 2401(b). "When the sum certain is omitted, the
administrative claim fails to meet the statutory prerequisite to maintaining a suit
against the government, and leaves the district court without jurisdiction to hear
the case." Suarez, 22 F.3d at 1065.

12

The dismissed plaintiffs do not dispute that they failed to provide a sum certain
on their SF-95s when they were filed on April 22, 2002. However, they
contend that because they submitted additional documentation with the SF-95s
from which the government could have ascertained a sum certain, and because
they corrected the omission within one month of the filings, the "technical
deficiency" does not preclude the federal court from hearing the case.
Specifically, the dismissed plaintiffs argue that the additional ninety-seven SF95s, which included a sum certain and were filed on the same day and in the
same box as the dismissed plaintiffs' SF-95s, provided sufficient notice to the
government of the claimed amount and therefore satisfied the jurisdictional
requirement of the FTCA. The dismissed plaintiffs additionally assert that the
attached Dalrymple v. Reno complaint, in which plaintiffs sought $100 million,
is sufficient documentation from which the government could have ascertained
a sum certain for each of the dismissed plaintiffs. Finally, the dismissed
plaintiffs concede that they did not correct the omission within the two year
statute of limitations for filing an administrative claim; however, they contend
that the omission does not preclude the federal court's jurisdiction because they
corrected the omissions within one month of the filings, and the government
was not prejudiced by the delay.6

13

This court has stated that it takes "a somewhat lenient approach to the `sum
certain' requirement." Tidd v. United States, 786 F.2d 1565, 1567 n. 6 (11th
Cir.1986). However, "[w]e have held that the FTCA requires, at a minimum,
that a claimant expressly claim a sum certain or provide documentation which
will allow the agency to calculate or estimate the damages to the claimant."
Suarez, 22 F.3d at 1066. The government contends that neither the additional
documentation attached to the dismissed plaintiffs' claims nor the correction
made after the statute of limitations expired satisfies the prerequisite to filing
suit under the FTCA. We agree.

14

The FTCA requires that each claim and each claimant meet the prerequisites
for maintaining a suit against the government. 28 U.S.C. 2675(a). As our
sister circuits have held, in multiple claimant actions under the FTCA "each
claimant must `individually satisfy the jurisdictional prerequisite of filing a
proper claim.'" Haceesa v. United States, 309 F.3d 722, 734 (10th Cir.2002)
(quoting Muth v. United States, 1 F.3d 246, 249 (4th Cir.1993)); see also Keene
Corp. v. United States, 700 F.2d 836, 842 (2d Cir. 1983) ("Where separate
claims are aggregated under the FTCA, the claimant must present the
government with a definite damage amount for each claim."). Accordingly,
because each claimant must independently satisfy the prerequisite for filing suit
under the FTCA by providing a sum certain claim, we conclude that the other
ninety-seven claimants who filed a sum certain claim do not satisfy the
statutory prerequisite for the dismissed plaintiffs who omitted a sum certain in
their claims.

15

Additionally, the attached Dalrymple v. Reno complaint is not sufficiently

specific such that the government could have calculated or estimated the
damages to each of the dismissed plaintiffs. In Molinar v. United States, 515
F.2d 246 (5th Cir.1975)7 the former Fifth Circuit held that although the
plaintiff failed to provide a sum certain in his administrative claim, he satisfied
the FTCA's prerequisite by attaching to his claim medical bills and repair
estimates totaling the exact amount of damages he sought. Id. at 249. Unlike
the medical bills and repair estimates in Molinar, the attached Dalrymple
complaint does not contain specific information as to the alleged damages that
each dismissed plaintiff is seeking.

16

As to four of the dismissed plaintiffs, the Dalrymple complaint does not

provide insight into the amount each plaintiff is seeking because they were not
parties to the Dalrymple action.8 Even as to the dismissed plaintiffs who were
parties to the action, the complaint does not provide information as to the
amount of damages the individual plaintiffs in the Dalrymple action sought,
rather it provides a total amount of damages for the multiple plaintiffs.
Although the dismissed plaintiffs contend that the government could have
ascertained a sum certain based on the Dalrymple complaint by dividing the
total amount of damages by the number of plaintiffs to determine that each
appellant in the present action is seeking a sum certain of approximately $2
million, this contradicts the dismissed plaintiffs' assertion that the sum certain
that each plaintiff is seeking is $250,000. Moreover, even if it were possible to
ascribe to the dismissed plaintiffs a portion of the aggregate damages claimed
in the Dalrymple complaint, it would not shed light on the value of their FTCA
claims because the damages sought in the Dalrymple complaint are not
representative of the damages they are seeking under the FTCA.9 Accordingly,

we hold that the Dalrymple complaint does not meet this court's standard for
satisfying the statutory prerequisite for filing suit under the FTCA.
17

Finally, the dismissed plaintiffs' correction of the omission of a sum certain

within one-month of the filing, but undisputedly after the two-year statute of
limitations,10 is not sufficient to correct the error, despite the government's lack
of prejudice. A sum certain, or documentation from which the court can
reasonably estimate the damages, must be filed with the appropriate agency
within the two-year statute of limitations in order to satisfy the prerequisite to
bringing suit against the government under the FTCA. See Adkins v. United
States, 896 F.2d 1324, 1325 (11th Cir.1990); see also Kokotis v. United States
Postal Serv., 223 F.3d 275, 278 (4th Cir.2000) ("Failure to request a sum
certain within the statute of limitations deprives a district court of jurisdiction
over any subsequently filed FTCA suit."); Kokaras v. United States, 980 F.2d
20, 22 (1st Cir.1992) ("[A] timely-presented claim stating a sum certain is
necessary for a court to have jurisdiction to entertain a suit against the United
States under the FTCA"); Cizek v. United States, 953 F.2d 1232, 1234 (10th
Cir.1992) (holding that failure to provide a sum certain within the two-year
statute of limitations deprived the federal court of subject matter jurisdiction);
Wardsworth v. United States, 721 F.2d 503 (5th Cir.1983) (same). The
dismissed plaintiffs clearly did not provide a sum certain or any additional
documentation from which the government could have sufficiently ascertained
the amount of damages they were seeking within the two-year statute of
limitations. Accordingly, we conclude that the district court did not err in
dismissing for lack of subject matter jurisdiction the claims of the dismissed
plaintiffs.
B. Reasonable Use of Force

18

The remaining appellants contend that the district court erred in finding that, as
a matter of law, the agents' use of tear gas was objectively reasonable under the
circumstances, and thus not actionable under Florida tort law. Appellants argue
that the use of tear gas, rather than pepper spray, violated the INS's policies and
procedures in effect at the time of the execution of the warrants, as well as the
INS's Operational Plan, and thus does not constitute an objectively reasonable
use of force and gives rise to tortious causes of action under Florida law. 11 Even
viewing the facts in the light most favorable to the summary judgment
plaintiffs, and thus assuming that tear gas was used and such use violated the
INS's policies, procedures, and plan, the appellants fail to establish that such a
violation supports liability under Florida tort law.

19

Violating an internal policy or procedure does not create a cause of action under

the FTCA against the government unless the challenged conduct is

independently tortious under applicable state law. See Miles v. Naval Aviation
Museum Found., Inc., 289 F.3d 715, 722 (11th Cir. 2002) ("The FTCA creates
liability for the United States only if the act at issue is a tort in the state where
the conduct occurred."). The FTCA was not intended "to create new causes of
action" or "to enforce federal statutory duties." Pate v. Oakwood Mobile
Homes, Inc., 374 F.3d 1081, 1084 (11th Cir.2004) (quoting Howell v. United
States, 932 F.2d 915, 917 (11th Cir.1991)). "[E]ven where specific behavior of
federal employees is required by statute, liability to the beneficiaries of that
statute may not be founded on the [FTCA] if state law recognizes no
comparable private liability." Id. (quoting Sellfors v. United States, 697 F.2d
1362, 1367 (11th Cir.1983)). In cases in which the government employees'
actions involve "uniquely governmental functions," as in this case, we have
held that the "comparison of activities need not be exact." Id. (quoting Howell,
932 F.2d at 918).
20

Adopting the magistrate judge's report and recommendation, the district court
held that the agents' actions did not constitute a tort because the agents' use of
force was objectively reasonable, and thus privileged under Florida law.
Specifically, in his report and recommendation the magistrate judge relied on
section 776.05 of the Florida statute, which provides, in part,

21

A law enforcement officer, or any person whom the officer has summoned or
directed to assist him or her, need not retreat or desist from efforts to make a
lawful arrest because of resistance or threatened resistance to the arrest. The
officer is justified in the use of any force:

22

(1) Which he or she reasonably believes to be necessary to defend himself or

herself or another from bodily harm while making the arrest . . . .

23

Fla. Stat. 776.05 (2000). The appellants do not attempt to dispute the
magistrate judge's findings adopted by the district court that the "evidence in
the record establishes that many protestors sought to interfere with the INS
officers' ability to execute the warrants and remove Elian Gonzalez from the
Gonzalez home" and evidence supporting the district court's finding that "the
conduct of many protestors and certain plaintiffs would constitute obstruction
and/or interference under both Florida and federal law."

24

The magistrate judge found that the gas gun was used only in response to
threats posed by the demonstrators. For example, the magistrate judge found
that the demonstrators posed a threat when they ran towards the Gonzalez's

property upon the agents' arrival and then refused to return to the opposite side
of the street barricade upon the agents' requests. The magistrate judge further
found that, as a result, an agent sprayed the Israeli gas gun in the direction of
the demonstrators who were advancing on the property. The magistrate judge
found that the gun was used again when the demonstrators behind the barricade
posed a threat by surging towards the front of the barricade while throwing
objects including rocks, bottles, a stool, and coolers at the agents and refused to
comply with the verbal and physical commands of the agents. Based on these
undisputed findings of fact, we agree with the district court that such
obstruction and interference posed by the demonstrators justified the use of
either pepper spray or tear gas and was objectively reasonable under the
circumstances.
25

Additionally, the trial plaintiffs contend that the district court's findings of fact
that the Israeli gas gun contained oleoresin capsicum ("OC spray"), or pepper
spray, are clearly erroneous because the parties agreed in the Joint Pretrial
Stipulations that the gas gun was filled with 0-chlorobenzalmalononitrile ("CS
gas"), or tear gas. After reviewing the trial transcript, we conclude that the
district court's findings of fact are supported by testimony presented at trial. (R.
Vol. 7, Trial Tr. Vol. IV at 45, 47-48.) "For a reviewing court to conclude that a
district court clearly erred in its finding of fact, the reviewing court, after
examining the entire record, must be left with the definite and firm conviction
that a mistake has been committed." Lykes Bros., Inc. v. United States Army
Corps of Eng'rs, 64 F.3d 630, 636 (11th Cir.1995) (internal quotation omitted).
Having reviewed the entire record, we are not left with the definite and firm
conviction that a mistake has been committed. There is evidence that supports
both the district court's finding and the trial plaintiffs' contention. When there is
evidence supporting conflicting findings of fact, "the resolution of such factual
disputes is the province of the trial court." Id.

V. CONCLUSION
26

For the foregoing reasons, we affirm the district court's final judgment entered
in favor of the government.

27

AFFIRMED.

Notes:
*

Honorable Richard Mills, United States District Judge for the Central District
of Illinois, sitting by designation

Appellants assert that Plaintiff Conception Maria Cabral ("Cabral") appeals the
district court's order dismissing her claims for lack of jurisdiction. Our review
of the Notice of Appeal reveals that Cabral is not listed as one of the plaintiffs
appealing to this court, thus she is not an appellant to this action. However, the
same legal analysis and reasoning set out in this opinion would apply to her
claims as well

This decision was eventually appealed to this court and we affirmed the INS's
findings that the petitions were legally voidSee Gonzalez v. Reno, 212 F.3d
1338 (11th Cir.2000).

A Standard Form 95 is the standard form used to file a claim against the
government under the FTCASee 28 C.F.R. 14.2(a).

Specifically, the complaint asserted claims against Attorney General Janet

Reno, INS Commissioner Doris Meissner, and Deputy Attorney General Eric
Holder, in their individual capacities underBivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29
L.Ed.2d 619 (1971), for violations of the plaintiffs' First, Fourth and Fifth
Amendment rights. Reno, 164 F.Supp.2d at 1367-69, rev'd, 334 F.3d 991 (11th
Cir.2003).

These appellants include Elsa Anderson, Ramon Diago, Antonio Ortega,

Madeline Peraza, Maria Riera, Eduardo Rodriguez, Gloria Sanchez, Illena
Santana, Carmen Valdes, Leslie Alvarz, and Nancy Canizares. Additionally,
the government inadvertently failed to move for summary judgment as to
Armanda Santos's claims. Thus, her claims survived summary judgment as well

Appellants asserted at oral argument that this court should toll the two-year
statute of limitations for filing a sum certain under the FTCA. When
questioned, appellants asserted that this argument was implicitly made to the
court in its initial brief. However, after carefully reviewing the appellants'
initial brief, we conclude that the appellants failed to raise the issue sufficiently
for discussion, and thus it is deemed abandonedSee Doe v. Moore, 410 F.3d
1337, 1349 n. 10 (11th Cir.2005).

InBonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc),
this court adopted as binding precedent all of the decisions of the former Fifth
Circuit handed down prior to the close of business on September 30, 1981.

The four appellants include Mirtha Maria Falcon, Antonio Ortega, Yuliet
Colon, and Angela Taina Toro

The plaintiffs in theDalrymple complaint sought punitive damages and

prejudgment interest, both of which are not available under the FTCA. See 28
U.S.C. 2674.
10

It is undisputed that the appellants' claims accrued on April 22, 2000, and thus
the two-year statute of limitations ran on April 22, 2002, the day they filed their
administrative claims

11

Although appellants argued to the district court that the violation of the internal
policies and procedures created a "zone of risk" sufficient to support liability
for negligence under Florida tort law, the appellants did not raise this argument
to this court in their initial brief. Accordingly, we deem it abandonedSee
Randolph v. Green Tree Fin. Corp., 244 F.3d 814, 816 (11th Cir.2001).
However, even if this court were to consider the merits of such argument, for
the reasons stated above, we agree with the district court that any negligence
claims premised on the agents' use of tear gas fail as a matter of law because
their actions were objectively reasonable under the circumstances.